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EXECUTIVE USURPATION: 

Speech of Hon. James A. Bayard, 

OF DELAWARE, 

In the Senate of tlie United States, July 19, 1861. 



The Senate having under consideration the joint resolution (S^No. 1) to approve 
and confirm certain acts of the President of th-e United States for suppressing insur- 
rection and rebellion — 

Mr. Bayard said : 

Mr. President, duryig ih.Q special session of the Senate in Marcii 
last, when seven States had withdrawn, by the action of their people, 
from the Federal Union, disclaimed all allegiance to the Government, 
and organized a separate common government, I took occasion, before 
the public mind had become excited, to express fully my views of the 
structure of our Government, and the unhappy condition of the coun- 
try ; and also to indicate the course of action which I .believed most 
conducive to our happiness and prosperity in the future. I then 
thought, after the most anxious and gravest consideration,, and actu- 
ated by no earthly motive but the good of my country, that the pnly 
alternative which remained was an assent to the revolution: by Which 
the Gidf States had left us, or civil war. That though the secession 
of a State was an act of revolution, it was an event not provided for 
by the Constitution, and could only be met by war or peace. That 
the power to coerce a State by the General Government by arms, hav- 
ing been expressly refused by the framers of the Constitution, we had 
no other resource left but war against them for a breach of the compa<51f ' 
upon which the Federal Government is founded, or peace and the 
recognition of the common government which they had or^ahi^e'^, 

I did not doubt that the right of judgment as to peace or war rested 
in Congress ; but I was unable to see how any plea of executing the 
laws or retaking the public property justified the use of the military 
power as a primary power, for that purpose, within the intent of the 
Constitution and the powers conferred by it on Congress or the Exe- 
cutive.- Believing, also, that the withdrawal of those States did not 
subvert our Government, but left us a great and powerful nation, I 
thought a peaceful separation preferable to what I consider the great- 
est curse which the providence of God can inflict upon a nation — civil 
war. I also indulged the hope, and now believe that hope would have 
been realized, that by conciliation those States might be restored to 
the Union, and expressed the opinion that an attempt at coercion 
would drive other States out of the confederacy ; and in this, at least, 
subsequent events have shown that I was not in error. The Execu- 
tive, as I deem most unfortunately, adopted the policy of coercion, 

H. Polkinhorn, Printer, Washington. 



and collision folloAved. An appeal by proclamation was made to tli^ 
people for volunteers, which involved of necessity coercion l)y'arms 
and Avar, and fonr more* States withdrew from the Union, and joined 
the Confederate States. The convention of Virginia had showm by 
repeated votes that a majority exceeding seventy existed in that body 
deeply attached to the Union, anxious to retain the State in the Union, 
and to settle the causes of difficulty which had arisen among ns. On 
the President's proclamation, that convention seceded fiom the Union, 
and by an overwhelming majority of the people of Virginia their 
action has been ratilied. Tennessee, which a brief time before had 
refused by thirty thousand majority to call a convention, immediately, 
by the action of her Legislature, left the Union, and her people rati- 
fied the act by sixty thousand majority. North Carolina withdrew 
with entire unanimity, though she had voted down a convention a 
short .time before ; and Arkansas, which had from her love to the 
Union postponed any consideration of the question of secession till 
the fall, in order that so eventful a matter should be fully discussed 
before her people, -and its effects gravely weighed before determina- 
tion, also left us, as consequent upon the proclamation. 

' Much as I deplored the loss of the Gulf States, I was then -willing, 
to use the language of Burke, in 1777, in relation to our own Eevo- 
lution : 

" To part with them as a limb, but as a limb to save the body ; and I would have 
parted with more, if more had been necessary ; anything rather than a fruitless, hope- 
less, unnatural civil war." 

Sir, I am as deeply attached to the Union as any man who claims a 
sea.t in this body. I would have saved it in its integrity by concilia- 
tion and compromise ; and it is my consolation that, in my past life, 
no word or act of mine ever encouraged a sectional feeling among my 
countrymen. Nay, more, if any sacrifice on my part, involving prop- 
erty or even life itself, could now end this unhappy struggle, and 
restore and preserve the Union, with the fraternal feeling and national 
sentiment in which it was founded by our forefathers, that sacrifice 
"would be readily and cheerfully made. I could leave no richer or 
prouder inheritance to my children than the reflection that their father 
had sacrificed himself for the prosperity and welfare of his country. 

But the passions of the nation have become excited, and the cry 
now is, "unconditional submission and the crushing out of rebellion," 
without the first step having been taken for the purpose of concilia- 
tion. States are to' be reduced to provinces, and the military power 
to become the dominant power in a representative republic. Even a 
servile insurrection is threatened, should it prove necessary; for the 
purpose of conquest and subjugation. 

" Unconditional sul;)mission, and the crushing out of rebellion" was 
the language of the Crown and ministers of Great Britain in the 
struggle in which our ancestors achieved our liberties. No terms 
should be offered to armed rebels ; the sword and the bayonet were 
the only admissible arguments. The Governme»t was to be strength- 
ened, and the Colonies to be subdued. The habeas coiyus act was 
suspended in America and on the high seas, and those who sailed under 
letters of marque issued by the United States Congress were denounced 
as pirates. Let me read the answer to this course of policy of Mr. 



Barke, whicli imbodies the general sentiment of the greatest statesmen 
and truest patriots of England in that day. I read from his letter to 
the sheriffs of Bristol, in April, 1777, less than a year after our inde- 
pendence had been declared ; and for its general truths, as applicable 
to the present struggle, the whole letter might be read with profit by 
every well-wisher of his country : 

" It is said that, being at war witli the colonies, whatever our sentiments might 
have been before, all ties between us are now dissolved ; and all the polic/ we have 
left is to strengtnen the hands of the Government to reduce them. On the principle 
of this argument, the more mischief we suffer from anjr administration, the more 
our trust in it is to be confirmed. Let them but once get us into a war, and then 
their power is safe, and an act of oblivion is passed for all their misconduct. But 
is it true that Government is always to be strengthened with the instruments of war, 
but never furnished with the means of peace ? In former times, ministers, I allow, 
have been sometimes driven by the popular voice to assert by arms the nattoiial honor 
against foreiffii powers. But the wisdom of the nation has been far more clear when 
those ministers have been compelled to consult its interests by treaty.''^ 

Further : 

" This mode of yielding would, it is said, give way to independency without a war. 
But if it had this effect, I confess that I should prefer independency without war to 
independency with it; and I have so much trust in the inclinations and prejudices of 
mankind, and so little in anything else, that I should expect ten times more benefit to 
this kingdom" — 

The United States, Mr. President — 

" from the affection of America," — 

The South— 

*' though under a separate establishment, than from her perfect submission to the 
Crown and parliament" — 

The Federal Grovernment — 
*' accompanied with her terror, disgust, and abhorrence. 

"Bodies tied together by so unnatural a bond of union as mutual hatred, are only 
connected to their ruin." 

Could we, Mr, President, if after a desolating war we succeeded in 
subjugating the South, bind her to us by any other bonds of union 
than mutual hatred, and is it not true that such a bond of union would 
involve the ruin of both the Xorth and the South ? 

It has been said that if we let these States go in peace we yield to 
the right of secession at will by a State, and that such a principle will 
lead to the entire disintegration of the Union. But we do not yield 
to the right of secession by recognizing revolution. I admit that were 
a single State to secede — even a large State — restriction and coercion, 
(not by arms,) coupled with conciliation, might well be used, and 
would be successful in restoring her. Such was the course of our 
ancestors in the adoption of the Constitution to the small State of 
Ehode Island and the larger State of North Carolina, one of which 
remained out of the Union after the organization of the Federal Gov- 
ernment for one year, and the other a year and a half. I admit, also, 
that secession is revolntion, and that we have the right of war in such 
a case, if Congress so decides. But the object of the war ought to be 
the restoration of fife State to the Union, and, as against a single State, 
the menace of war would in all probability, from the superior power 
of the Federal Government, effect its object without bloodshed. 

I dismiss, therefore, all apprehensions from my mind arising from 
the recognition of a revolution ina^ugurated and carried on by a large 
section of the country by the collective action of its people, as conced- 



iug the riglit of secession or leading to the future disintegration of the 
Union. Sir. in the Eevolution of 1776, Massachusetts was the colony 
that lirst embarked in resistance to the mother country. Does any 
gentleman suppose that revolutions must not -be dealt with according 
to their magnitude ? Can there be a doubt that the mistake which 
Great Britain made then, was in attributing the spirit of resistance to 
the leaders alone, when the hearts of the people were in the contest ? 
Governor Gage issued his proclamation in Boston, in which he offered 
to all the inhabitants of the colony entire protection and amnesty, with 
the exception of John Hancock and Samuel Adams, if they would lay 
down their arms and submit to the Government ; but .the offer was of 
no avail. Does any gentleman suppoge that the colony of Massachu- 
setts alone could have resisted the power of the British Government, 
unless the sympathies of the people of the other colonies had been 
enlisted, and they had made common cause with her ? Having a com- 
mon interest, they united to resist an exercise of power which^ if sub- 
mitted to by one colony, would in the end be crushing to the liberties 
of all. Had those ministers not been blind to the general sentiment 
of the people of the colonies, they would not have held and acted 
upon the mistaken idea which is now so rife in relatiorT to the seceding 
States, that it was the leaders alone, and not the people, whose hearts 
were in the cause, and Great Britain would probably in the first in- 
stance, have parted with her colonies in peace, or retained her general 
authority by concessions, saving herself a debt of more than a thou- 
sand million dollars, arid also carrying on with them a commercial 
intercourse far more profitable to her than would have existed if the 
the powers which she claimed over an unwilling people had been en- 
forced by subjugation. Eevolution by a large section of country, 
composed of eleven States, with singular unanimity on the part of 
their people, cannot be met by war, if the object be the restoration of 
the Union and its preservation as a rejyreseniative republic. 

Sir, on this subject let me show you what are not merely my opin- 
ions of the impracticability of a single repuhlic over so extensive a 
country as ours Avithout the existence of the internal governments of 
separate independent States, bound together by one common govern- 
ment over communities separate among themselves and constituting us 
a nation as regards the world at large ; but the opinions universally 
entertained at the time the convention sat which framed the Federal 
Constitution. Xo abler man, with rare exceptions, at least, if any, 
than Mr. Wilson, of Pennsylvania, was found in that convention. His 
name appeared as an active participator in all its debates. He was 
one of the framers 6f the Constitution, peculiarly entitled to our grat- 
itude, and one of its most ardent supporters, both in its original forma- 
tion and in its adoption by his own State. I read from a speech which 
he made in favor of the adoption of the Constitution by the people of 
Pennsylvania,' in the convention of that State, and I read it in order 
to show the danger of consolidation into a single government^ which 
is inevitably incident to the subjugation of the soifthern States by the 
military power : 

" The United States may adopt any one of four different systems. They may 
become consolidated into one Government, in which the separate existence of tlie 
Stalt^ shall be entirely absolved. They may reject any plan of union or associa- 
tion, and act as separate and unconnected States. They may form two or more 



confederacies. They may unite in one federal republic. Which of these systems 
ought to have been formed by the convention ? To support toUh vigor a simjle Gov- 
ernment over the whole extent of the United States would demand a systera of the tnost un- 
qualified and niost imremitted despotism. Such a number of separate States, contigu- 
ous in situation, unconnected and disunited in government, would be at one time 
the prey of foreign force, foreign influence, and foreign intrigues, at another the 
victims of mutual rage, rancor, and revenge. Neither of these systems found advocates 
in the late convention. I prestime they will not find advocates in this.^' 

After discussing the relative merits of a union of two or more re- 
publics, or into one, he speaks of "the remaining system," which was 
adopted, " as a union of them into one confederate republic." No man 
can doubt that the words "confederate" and "federal" are synony- 
mous, and when applied to this republic, or any other, imply, from the 
force of the words, a common government over separate independent 
communities. 

I ha-'^e read it, sir, to warn gentlemen that the system of government 
adopted in 1787 is inconsistent with the prosecution of war for the 
subjection of the South ; and yet you cannot execute the laws, as you 
claim to do, within the Confederate States without their entire con- 
quest and subj.ugation. You must, if successful, convert, and it has 
been threatened by many leading papers, and by at least one leading 
member of the administration, that you will convert this Government 
into a single Q-overnment, and absolve all State lines. In answer to 
such a purpose, and as an all-sufficient objection to it, I give you the 
great general truth enunciated by Mr. Wilson, that a government of 
that kind, to exist over the extent of this country, must be "a system 
of the most unqualified and unremitting despotism." 

Sir, I would preserve the Union. Why ? To preserve the liberties 
of my country. If the Union is to be made the means of prostrating 
those liberties, then it is far better that the Union should be aban- 
doned than that free institutions should be abolished. I value and 
cherish it, not merely because it gives us a powerful Grovernment, but 
because it^ power secures and protects the individual liberty of the 
citizen, and because the Union, under a Federal Constitution, will per- 
petuate republican institutions, and preserve self-government by the 
people. 

By war you may subjugate and devastate the Southern States; but 
the large army you must permanently maintain to keep them in sub- 
jection will inevitably, in the end, subvert our own institutions and 
convert a republic into an autocratjy. It is easier to organize than to 
disband a large army ; and more difficult still to disband a dictator 
when you have yielded to him the power of the sword and the purse, 
and subordinated the civil to the military power. 

But have Senators reflected on the eftects of civil war upon the 
character and habits of the people, and its demoralizing influences? 
Let me give you the portraiture of those effects and influences, in the 
language of the same great statesman ; because the truth is general and 
as applicable to our times as to the day in which he lived. " Civil 
wars," said Mr. Burke — 

" Civil wars strike deepest of all into the manners ol the people. They vitiate 
their politics; they corrupt their morals; they pervert even the natural taste and 
relish of equity and justice. By teaching us to consider our fellow-citizens in a 
hostile light, the whole body of our nation becomes gradually less dear to us. The 
very names of affection and kindred which were the bonds of charity whilst we 



6^, 

agreed become new incentives to katred and rag^ when the commnnion of out 
country is dissolved. We may flatter ourselves that we shall not fall into this mis- 
fortune ; hut we have no charter of exemption that I know of from the ordinary 
frailties of our nature." 

If tlie language of tL^ statesman ■\\'ill not convince yon, take the 
coiToboration iu tlie experience of the soldier : 

" It has been my fortune to have seen much of war, more than most men. I have 
been constantly engaged in the active duties of the military profession from boyhood 
until I have grown gray. My life has been passed in familiarity with scenes of 
death and suffeiing. Circumstances have placed me in countries where the war 
was internal — between opposite parties in the same nation — and rather than a 
country I loved should be visited with the calamities which I have seen, with the 
unutterable horrors of civil war, I would run any risk, I would make any sacrifice, 
I would freely lay down my life. There is nothing which destroys property and 
prosperity and demoralizes character to the extent which civil war does. By it the 
hand of man is raised against his neighbor, against his brother, against his father; 
the servant beira\s his master, and the master ruin his servant." 

Snch was the experience of the great Dnke of Wellington, and I 
pray God we may profit by that experience before it is too late. Sir, 
it may be that I have a more vivid imagination, or that my nerves are 
less firm than those of my brother Senators ; bnt I confess, that when 
I think of the blood that mnst flow in this contest, this nnnatnral con- 
test, of the devastation that mnst ensue, of the human lives that mnst 
be sacrificed, a shudder runs through my frame, and my heart sickens 
with despair. I am for peace, an armistice and negotiation, whether 
by a general convention or by treaty, or in any other mode ; I care 
not for the mode, if civil war can be terminated, and peace come to . 
my country. I would receive the proposals of those who have at least 
been once our brethren. I would yield nothing which I thought de- 
graded the United States, or svibverted our form of government ; but 
I would, by compromise, restore them to the Union if possible. If 
that were impracticable, I would part with them in peace, on a just 
and equitable settlement. We know that they claim their indepen- 
dence, and offer to account for all the public property which they have 
taken ; that they have neither invaded us, nor expressed any intention 
to invade us, but claim their own right of self-government, founded on 
"the consent of the governed." If their terms of settlement be unjust^ 
reject them, and continue the war until they submit to just terms and 
an equitable adjustment. But you must receive their ofi'ers before you 
can decide on their admissibility, unless, indeed, unconditional submis- 
sion be, like the demand of Grea^ Britain from our ancestors, your 
absolute determination. Those ancestors owed allegiance to the crown' 
of England, and rebelled ; the government of England said without 
cause. Eleven States have revolted by the collective action of their 
people against the Federal Government, and you say withoiit cause. 
Admitting that they have exaggerated their causes of complaint ; ad- 
mitting that they were precipitate in their action, and that their sense 
of insecurity to their property and social institutions under the Federal 
Government has been entirely over-estimated ; yet I tell you that it is 
a truth which the records of history will not gainsay, that " such an 
event as the disaffection and revolt of a whole people never took place 
without some considerable errors of conduct observed towards them." 

Senators, I am well aware that the administration and an overwhelm- 
ing majority of Congress do not and will not assent to my views ; that 



you regard force and war as tlie true and only mode of preserving the 
Union, wliilst I have a confident belief tliat tlie continuance of war 
will inevitably subvert the republic, and substitute a military govern- 
ment for civil liberty and a government of laws. I am satisfied 
that you have determined on war. I impugn no man's motives, 
though I dissent from your judgment, and condemn j^our pohcy 
of war. Resistance, however, to the will of such a "majority, I 
know to be futile and hopeless, and I m.ean to embark in no' factious 
opposition to your practical measures ; your practical legislation, there- 
fore, has met, and will meet, no cavils or objections from me ; except, 
indeed, bills should be introduced, palpably violating the Constitution 
of mj- country. With you rests the responsibility, and as I cannot 
conscienciously support a course of action which is against my convic- 
tion, nor wisely contend with a majority which I know to be'' irresisti- 
ble, I shall await that change in public sentiment which I feel confident 
will take plac^, when the hour of passionate excitement has^passed, 
and the blighting influences of civil war have awakened what Fisher 
Ames well called " the second sober thought of the people." 
, Much as I dissent from the President's message in its mode of statina- 
facts, its arguments, and its omissions, I forbear even a single com" 
ment, open as I believe it to just criticism." I leave thai task to 
others, by whom, in my opinion, it has been well performed. But I 
have some hope, some faint hope, that you may be induced to refrain 
from passing the resolution now before the Senate, which involves no 
practical legislation, unless indeed there is an intent— which I do not 
suppose— to suspend, by indirection, the writ of haheas corpus in the 
future. _ I proceed now to the consideration of the resolution. 

The joint resolution imports not merely an approval of the acts of 
the President, but a declaration that all the acts enumerated in the 
preamble are to be -'in all respects legal and valid, to the same intent 
and with the same effect as if they had been issued and done under 
theprevious express authority and direction of the Congress of the 
United States." As regards four of those acts, it would be very im- 
material whether you passed this resolution or not ; as regards the 
other two, it is of the last importance to the liberty of every man in 
the United States that you should not pass it. 

The preamble recites the act of the President in calling volunteers 
into the service on the 15th of April ; to the act of blockade of certain 
ports on the i9th of April, and of other ports on the 27th of April, 
by executive authority, when no law authorized the executive to exert 
such a power. The fourth act recited relates to the suspension of the writ 
of habeas corjms, and the delegation of the power to suspend it to a subordi- 
nate officer under the President ; the fifth to the proclamation increasing 
the army of the United States, and calling additional volunteers into 
service ; and the sixth to a further suspension of the habeas corpus act. 

The first three and the fifth are all provided for by laws Avhich you 
have passed, or will pass at this session. You have provided for the 
volunteers that were called out on the i5th of April. That sanctions 
the act, as far as you can sanction it, and provides for the payment of 
the men. I do not dispute your right to do that. You have passed a 
bill to authorize a blockade of the ports of certain States in the future ; 
and though on your theory, I consider that Congress has no authority 






to institute or authorize sucli a blockade, yet, on mine, I do not deny 
the constitutionality of the act, if it is passed by virtue of the -war- 
making power, for that is in the absolute discretion of Congress. And 
what is blockade but a belligerent right ? Whoever heard of it under 
anv other aspect, or by any other name ? If you are at war, you can 
declare a blockade ; and to be at war, it is not necessary that you 
should formally declare war against those States ; but if by your acts 
yoii recognize a state of war with them, beyond all question war exists 
as between these United States and the confederate States. You have 
done so by many acts ; you will do so by more. I do not, therefore^ , 
dispute your right of blockade, though I deny that within the intent 
of the Constitution, you could blockade a port of a State still in the 
Union ; in consistence with that provision of the Constitution which 
inhibits Congress from giving a preference to the ports of one State 
over those of another. I do not mean to enter into that argument, 
because*! admit your authority under the war power, and I know that 
we are now in a state of civil war ; and you have actually recognized 
a war between these eleven States and the United States Grovernment, 
though you have not formally declared it. 

Mr. President, what is the rule as among nations ? During our last 
war wdth Great Britain, she had possession of a portion of our territory 
in the State of Maine, Eastport and the surrounding country. The 
coui'ts of the United States decided that the laws of the United States 
were suspended within that territory in the possession of a foreign 
enemy during the time that it was so in their actual possession ; and 
precisely the same principle applies to civil war that the laws of the 
United States are suspended where the possession is in the party at 
war with the Government — call them by what name you please — 
rebels, revolutionists, or enemies. The doctrine in England always 
was, that the laws were suspended, the habeas corpus act and all, within 
that portion of the territory where the king's court could not be opened. 
I do not deny that the President may exercise military powers there ; 
but I deny that in the States which belong to the Union, in which the 
courts are open, in which justice can be administered between man and 
man, the military can be made predominant over the civil power, 
either by Congress or by the President, without a gTOss violation of 
the Constitution. 

I come next to the question of the army. No man could pretend to 
• affirm that the President had authority to increase the army of the 
United States without a precedent law. No one for a moment could 
affirm that the power to raise and increase the army is not vested in 
Congress. You have approved the increase in the only mode in which 
you can legitimately sanction such an act. You have approved it by 
passing a bill providing for the organization of that army, and for the 
present and future pay of that army. I do not deny your right to do 
that. The measure is perfectly legitimate when you' have determined 
on war, and if you choose to sanction the conduct of the President by 
appropriate legislation. I shall offer no vain opposition to your mea- 
sures, 'because I differ with your policy, when I find the majority here 
detcj-mined on that policy. 

But, sir, the suspension of the writ of habeas corpus has a very dif 
ferent aspect if approved by Congress. If you think that the state of 



the country and the public exigency require that the writ of habeas 
corpus should be suspended, do it openly in the face of the countrj^ ; 
do it by your legislation ; but do not attempt to do it indirectly ; do 
not an act which you will hereafter regret, which will strike the most 
fatal blow at the liberties of this country which has ever yet been 
stricken, by the affirmation of the power in a President of the United 
States — a single man — to suspend the writ of habeas corpus whenever 
in his discretion he may think such such suspension advisable. Such 
is the effect of your resolution. The resolution is improper, because, 
if you think the writ ought to be suspended, you can suspend it by 
your own action. You have a right, under that action, to designate 
the States in which it which it shall be suspended, and to limit the 
time for which it shall be suspended. That is the course which has 
always been adopted in Grnat Britain for the last two hundred years, 
whenever it was necessary under any emergency to suspend the writ 
of habeas corpus, the great writ of right, which is the sole remedy of 
the subject to secure his right of personal liberty and personal free- 
dom — which is the sole remedy for freedom of the citizen here. It 
has been done by act of Parliament always ; and no king of England 
in two hundred years past has ever ventured to suspend the writ of 
habeas corpus, though, until the judiciary became independent of the 
Crown, his judges sometimes evaded the issuance of the writ. Still 
less did any king of England ever claim the power of delegating such 
a high discretionary authority to any subordinate officer. Sir, the 
po\^er is incapable of delegation, whether it is in the President of the 
United States or in the Congress of the United States ; and yet the 
President of the United States, according to his order as given, and 
I believe correctly given, in the newspapers, though I have not seen 
it elsewhere, and according to the recital of this resolution, did not 
himself decide that the state and condition of any part of the country 
required that the writ should be suspended, and the remedy for the 
civil liberty of the citizen thrown aside, but delegated the right of 
decision upon the political exigency which might justify and require 
the suspension of the sole remedy for the liberty of every citizen of 
the United States to military and subordinate officers. If the right 
exists in him, he had no power of delegation. If the right exists in 
us, it was palpable usurpation ; and yet you propose, not only to ap- 
prove, but to affirm the validity of an act directly in the face of the 
Federal Constitution. 

The President in his message claims that the power is vested in him 
as the executive, to suspend the writ of habeas corpus in his discretion. 
In the message, he alluded to the opinion of the Attorney General 
which has since been furnished to Congress. In that opinion the At- 
torney General, by an argument the most extraordinary which ever came 
from the pen of a lawyer, attempts to sustain the same doctrine. If the 
Congress of the United States not only approves the act but affirms its val- 
idity and legality, I ask where is our Government ? The whole power of 
the purse and the sword you have given to him ; the unlimited com- 
mand of men and money. You have voted $500,000,000 and five hun- 
dred thousand men ; and you now, by the indirect action of affirming 

an unconstitutional act, propose to yield to him the right to arrest any 
4 



10. 

citizen of these free United States on suspicon, witlioiit proof of guilt, . 
and without process of law. 

Sir, can it be that the Senate will pass such a resolution as this 
without striking out these clauses, at least ? Strike them out, and I 
care little for the resolution. In the case of blockade, I am willing to 
leave it to the courts. You cannot legalize a past act by your now 
determination, where it involves a forfeiture ; and therefore, if the 
President had no right to declare a blockade — if a vessel was inter- 
cepted before your law passes, and the case comes before the courts — 
the coui'ts will decide, without reference to your resolution, whether 
the President had authority to institute the blockade ; for if he had 
not. of course there could be no forfeiture under it. To pass such a 
law and make it retroactive, is clearly to pass an ex post facto law. It . 
involves a penalty arising out of an act made criminal, by subsequent 
legislation, which was not criminal or prohibited by the law at the 
time when the act was done ; that is, the attempt of any vessel to sail 
from or enter into any of the ports of the seceded States. On what 
principle can you, in the face of the Constitution;, affirm by legislation 
such action as that ? You are not vested with judicial power ; the 
judicial power is, by the Constitution, given to the Supreme Court and 
the subordinate courts that you have established. If you arrogate to 
yourselves judicial powers, you are departing plainly from the man- 
date of the constitution ; and you are destroying the Grovernment, 
which is made a free Government by a division of the powers of gov- 
ernment between separate and co-ordinate departments — the judiciary 
being by far the weakest of them all. But itj in addition to sanction- 
ing a blockade instituted Avithout color of law, the Congress of the 
United States chooses to vest in the President, by indirect action, judi- 
cial power to determine when the citizen's liberty shall be taken from 
him for any extent of time, at his discretion, it is perfectly certain 
that you are establishing a mere absolutism, and that you have aban- 
doned your form of government altogether. 

Sir, I do not propose to enter into any long discussion about this 
writ of habeas corpus. The decision of the Supreme Court of the 
United States, (which, differing from the learned Attorney General, I 
consider does settle principles and not merely decide cases,) made 
more than fifty years ago, held that the suspension of the writ was a 
legislative and not an executive power ; and I consider the the decis- 
ion of the Chief Justice in the case of Merryman so utterably unan- 
swerable, that it would be an idle attempt on my part to expect to 
reach or to change the opinions of a man who could read it and remain 
unconvinced. It has gone to the people of the country. I think the 
people of the country will appreciate the force and power of the opin- 
ion when the time of excitement has passed ; and I trust it is passing 
rapidly. 

But, sir, there are some things connected with this writ that it is 
necessary I should advert to. My objection relates to your affirmance 
of the validity of the power of the President to suspend the writ of 
habeas corpus whenever, in his discretion, he thinks the circumstances 
justify it ; that he is to be the judge of the political exigency which 
requires the suspension of the writ. Such is his claim. This resolu- 
tion, if passed, af&rms that claim, and approves and declares the sus- 



11 

pension of the writ to be a power vested in the executive and capable 
of delegation. The language of your resolution is, that the suspen- 
sion is declared to be " in all respects legal and valid," and vou em- 
body in that resolution no denial of the claim of power ; and where, 
then, stand the people of the United States in the future ? A single 
man becomes a despot ; he has the power of the purse and the sword, 
and jou give him the absolute control over the liberty of every citi- 
zen in the United States, to be exercised by himself or any subordi- 
nate officer to whom he may see fit to confide its exercise, in the abso- 
lute discretion of either the President or the subordinate. 

The Attorney General has given an opinion in support of this poAver 
in the executive ; and I purpose commenting on, at most, two of his 
conclusions. First, let me make a short statement in reference to the 
writ of habeas corpus, and read one or two authorities in connection 
with it. The clause of the CoQstitution which restricts the suspension of 
the writ of habeas corpus, except in cases of rebellion or invasion, merely 
secures the remedy of the citizens against illegal imprisonment, and the 
only remedy which the laws provide. The right to liberty, and freedom 
from imprisonment, without due process of law, is secured by the 
Constitution of the United States beyond your power to violate, as 
well as beyond the power of the President, unless you mean to tram- 
ple upon that Constitution. What is the language of the fifth article 
of the amendments to the Constitution ? That no person shall " be 
compelled, in any criminal case, to be a witness against himself, nor 
be deprived of life, liberty, or property, without due process of law." 
If you arrest him and confine him, do you not deprive him of liberty ? 
Is it by " due process of law," if the arrest is made by the military 
power without oath, without judicial investigation, without evidence 
of probable cause founded upon oath ? The words " due process of 
law," have their own settled meaning, which no lawyer has ever 
doubted. They come from Magna Charta, "the law of the land," and 
■"due process of law" meaning one and the same thing. If you want 
the exposition of their meaning, you have but to turn to Coke's Sec- 
ond Institute in order to find it. Magna Charta restricted the power 
of the crown, because the contest then was between the crown and the 
barons, representing themselves and the people of England ; but in 
our country, and in all the States, as well as in the Federal Constitu- 
tion, the restriction and the protection it secures to the liberty of every 
citizen, applies to all'departments of the Government — the legislature, 
the executive, or the judiciary. A man's right to his personal liberty, 
unless on a warrant issued for a civil debt, or on due process of law 
for a criminal charge founded on probable cause, substantiated by 
oath, is secured in the constitution of every State of this Union, and 
in the Constitution of the United States ; and Congress has no power 
of suspending the right, even in case of rebellion, insurrection, or war, 
though it may suspend the remedy by habeas corpus, in cases when, 
from rebellion or invasion, the public safety requires such suspension. 
The only exception to the invasion of the citizen's right of liberty, 
without due process of law, is " in cases arising in the land and naval 
forces, or in the militia, when in actual service in time of war or pub- 
lic danger." I admit that in those States in which by war the laws 
are suspended, the right and the remedy are suspended, and you may 



12 

exercise in tbem the rights of a belligerent ; but in the States in the 
Union, if the habeas corpus act were suspended by Congress, the Presi- 
dent would have no right to arrest by military power. He could only 
laTvfullr arrest the citizen not found in arms against the Government 
by the civil power, and for probable cause of guilt, founded upon oath. 
It is true, though, that if you take away the only remedy which the 
law gives for a judicial investigation, if the arrest is made, the party 
is entirely helpless ; and therefore it is that the suspension of the rem- 
edy has been often confounded with the suspension of the right. The 
right stands beyond your power, without a violation of the Constitu- 
tion. The remedy — and the only remedy — which secures the right, 
you may suspend in certain conditions of the country, where the pub- 
lic safety requires it ; but the discretion to suspend is vested in Con- 
gress, and not in the executive branch of the Government. 

We have derived this remedy by habeas coiyus from the common 
law. We have also derived the great principle that the citizen shall 
not be deprived of his personal liberty, except by " due process of 
law" from the common law, and have incorporated it into our funda- 
mental law, as the inviolate right of every American citizen. Let us 
recur to the law as it existed in England when these States were colo- 
nies, for by such reference only can we reach a correct construction of 
the intent with which these clauses in relation to " due process of law" 
and the writ of habeas corpus were inserted in the Constitution. 

No one doubts that by the law of England since Magna Charta, if 
not before, no subject could be deprived of his liberty without " due 
process of law," and was entitled of right to the writ of habeas corpus 
for the purpose of a judicial investigation into the cause of his confine- 
ment. Yet in practice the crown frequently invaded the personal 
liberty of the subject, and disregarded ttie writ, and there was a long 
struggle between the Commons and the crown for this great remedy, 
because without the remedy the right was a nullity, and the subject 
was at the mercy of the crown ; and his liberty could be invaded at 
pleasure, without "due process of law," by arbitrary and unlawful 
arrest and confinement. 

To show the character of this writ, and demonstrate that the au- 
thority to suspend it was always a legislative and not an executive 
power, I will read from an entry on the Commons' Journal, made on 
the 3d of April, 1628, during the reign of the Stuarts, in which the 
law is declared, while the contest for the liberty of the subject against 
arbitrary arrest by the crown was still in progress between the Com- 
mons of England and the crown : 

'' Resolved vpon qaesiion, That the writ oi habeas corpus may not be denied, but 
ought to be granted to every man that is committed or detained in prison, or other- 
wise restrained, though it be by the command of the king, the privy council, or any 
other, he praying the same — without one negative." 

That is the resolution of the British House of Commons without 
dissent in 1628. I find, further, on turning to the Lords' Journal, in 
February, ITO-l, privileged as they were and hereditary as was their 
rank, that they valued the civil liberty of their countrymen : 

"Resolved^ That every Englishman w^ho is imprisoned by any authority whatso- 
ever, has an undoubted right, by his agents or friends, to apply for and obtain a writ 
ol Juibeas covphi^. in order lo procure his liberty, by due course of law." 



Again, sir, on a representation made to tlie crown on the 15tli of 
March, 1704, by the Lords, it is said with great distinctness : 

"It has been allowed, by the known comraon law, it is the right of every subject 
under restraint, upon demand, to have the writ of habeas corpus, and thereupon to 
be brought before some proper couit, where it may be examined whether he be de- 
tained for a lawful cause." 

Such was the Law of England long before our Eevolution, when we 
were colonies of England ; such is the principle that was meant to be 
embodied in the Constitution of the United States by that restriction 
against the suspension of the Avrit of habeas corpus — a restriction, not 
on the power of the President, for he never had it ; but an exception 
to the powers granted to Congress ; and the effect is to make it man: 
datory on Congress to pass a law providing for the issuance of the writ 
by the judiciar}^, because the issuing of the writ and the execution of 
the writ are judicial matters from beginning to end, and always have 
been. It belongs to that department of our government in which the 
Constitution vests the judicial power of the country. Congress have 
the right to suspend it in certain cases, but that very right of siispen- 
sion renders it compulsory on them, if they do not mean to violate the 
Constitution, to provide by law, in such courts as they see fit to estab- 
lish, the power and impose the duty to issue and enfore this great writ. 
They did make such provision by law, in 1789, among the first acts 
after the organization of the Government under the Constitution. The 
fourteenth and fifteenth sections of the judiciary act give to the Su- 
preme Court and its judges, in all cases of commitment, the power, and 
impose the duty, to inquire into the cause of commitment, by and 
through the writ of habeas corpus. The power is there by law, and 
the law has not been suspended. On what principle is it that any 
President of the United States can suspend or disobey a law of the 
United States ? The great doctrine proclaimed has been that it was 
his duty to execute the laws in the seceding States. Is he to execute 
the laws by violating the laws, as a first step of action, in the States 
which have not seceded ? What power has the President of the United 
States to suspend a law of the land ? What king of England can do 
it, unless it is expressed in the law itself that he has such discretionary 
power ? No such discretion is given, and the fourteenth and fifteenth 
sections of your judiciary act require the court to issue this writ, on 
application, whenever a party is confined, and determine whether the 
commitment is legal. If the imprisonment is not lawful, it is the duty 
of the court or judge to discharge him. 

If Congress mean to af&rm that this power is in the President of the 
United States, I want it to go forth to this nation that they have vir- 
tually suspended the writ of habeas corpus, not by law, but by affirma- 
tive resolution, exercising a judicial authority which is not vested in 
them — an affirmation declaring that the President, in this country, can 
trespass upon the liberty of the citizen in a manner which would have 
cost any king of England his crown for the last two hundred years, if 
he had dared to exercise such a power. 

I submit, therefore, that if the President had the power, being the 
exercise of a high discretion founded upon the condition of the nation, 
of course it would be incapable of delegation. If, as I believe, the 
power exists in Congress, neither can Congress delegate it. If the exi- 



) 



14 

gencies of this country and the public safety, in your opinion, require 
that Tou should now suspend the habeas corpus act, you may, as they 
do in England, describe the States or parts of States into Avhich the 
writ shall not run during the time limited in the law. In England, I 
can lind not a single instance on record where the suspension has ever 
been for more than one year. During the contest with her colonies, 
the attempt was made to suspend the writ of habeas corpus by legisla- 
lation, with provisions which would have involved the suspension in 
England as well as here ; but the opposition, after discussing the ques- 
tion, forced the ministers to abandon that portion of the bill, because 
they found that the majority of the lawyers supporting them were op- 
■ posed to so extended a suspension. The bill was, therefore, modified so 
as to suspend the writ in the rebellious colonies and on the high seas ; 
that is, they authorized the apprehension of persons on suspicion in the 
rebellious- colonies and on the high seas, and their confinement, at the 
discretion of the king, until the 1st of January, 1778, not quite a year 
from the passage of the bill. Here it is not the passage of a bill ; it is 
not the exercise of a high discretion where, after full consideration, you 
decide that the public safety requires this great remedy — which is the 
only remedy to preserve the liberty of the citizen — shall be suspended, 
and where and for what length of time it shall be suspended ; but you 
af&rm an act of the President, done in his discretion, not in yours, in 
the past, which is clearly unconstitutional, and which you have not the 
power to afB.rm. By affirming his act as he claims the power, you are 
virtually assenting, on the part of the legislature, to the claim of power 
on the part of the President ; and thus the constitutional division of 
powers, which is the security of our Government as a free Government, 
is to be abandoned. 

I shall read one or two extracts from judicial decisions to show the 
uniform construction by judicial exposition. There can be no question 
that, in the case of Bollman and Swartout, the Supreme Court decided, 
in distinct terms, that the power was in the legislature, and the legisla- 
ture not having exercised any power to suspend the writ, even though 
insurrection existed, the court were bound to execute the law, and the 
evidence not being sufficient, they discharged the prisoners. They 
positively affirmed the power to be in the legislature ; and I had never 
heard, until the claim was made by the present Executive, of a solitary 
lawyer in the United States who ventured to doubt that the power was 
in Congress, and not in the President. In my judgment, a received 
construction of more than half a Century, and a settled opinion of the 
profession, is always strong evidence of what the law really is. 

The essential requisites for the lawful deprivation of the liberty of 

the citizen, are clearly and distinctly stated by the Supreme Court ex- 

parte Buford, 3 Cranch, 451 : 

"The judgeG of the court are unanimously of opinion that the warrant of commit- 
ment was illegal for the want of stating somegood cause certain, supported by oath." 

Where, let me ask, would be the liberty of the citizen, if the Presi- 
dent can arrest at his discretion, and refuse to obey the writ of habeas 
corpus ? Who is to decide whether there is a good cause certain, sup- 
ported by oath ? 

It is absolute power. This is not a land of freedom and free institu- 
tions longer, when you have passed the resolution now before you. 



15 

Tlie history of the habeas corpus act and its uses are well stated by ■ 
the court in Watkins's case, Judge Marshall delivering the opinion, 
after stating the existence of the right at common law, says : 

" The English judges being originally under tlie influence of the crown, neglected 
lo issue this writ where the government entertained suspicions which would not be 
sustained by evidence ; and the writ, when issued, was sometimes disregarded or 
evaded, and great individual oppression, in consequence of delays in bringing prisoners 
lo trial. To remedy this evil, the celebrated habeas corjms act of 31 Charles II was 
enacted," «&c.— 3 Peters, 203. 

That writ is the writ to which the court refer as securing to the peo- 
ple a judicial investigation ; a writ of right which cannot, in the language 
of the House of Commons, two hundred and fifty years ago, be lawfully 
denied, though the arrest be by the command of the king. That right is 
to be abandoned in the republic of the United States, in the face of an 
express provision in the Constitution limiting your legislative powers, 
which prevents you from suspending it, except in a political exigency 
of invasion or rebellion, where the public safety requires it ; of which 
you are to be the judges, and you alone. As to the meaning of the 
words " due process of law," as securing the rights of the citizen, I 
might refer to the opinion of a very able and distinguished judge of our 
own country, Mr. Justice Curtis, who, in a case which had no political 
bearings whatever, gave an exposition of the meaning of the words 
" laAV of the land," as existing in the constitution of Ehode Island, 
which is analogous to " due proems of law" in our own Constitution. 

Now, sir, let me notice for a moment some one or two of the some- 
what singular views presented in the extraordinary opinion of the 
Attorney General. On page 5 of the opinion, he says : 

''As to the first question, I am clearly of opinion that, in a time like the present, 
when the very existence of the nation is assailed by a great and dangei-ous insur- . 
rection, the President has the lawful discretionary power to arrest and hold in cus- 
tody persons known to have criminal intercourse with the insurgents, or persons 
against whom there is probable cause for suspicion of such criminal complicity." 

Here is a strange confusion of ideas. Every lawyer knows what 
" probable cause" means. Probable cause is something more than sus- 
picion. It is a state of facts established upon oath, from which prima 
facie an inference of guilt can be rationally made. Who ever heard 
before of the term " probable cause" applied to mere suspicion, and 
not to the fact of guilt itself ? There must be probable cause of guilt, 
and without that supported by oath, the court will discharge. There 
must also be authority for the arrest and commitment, or the court 
will discharge. If an offense be not charged, if there is no oath, or 
the oath does not show probable cause in support of the charges, as in 
the case of Swartout and Bollman, the court will discharge. 

I might ask, farther, in connection with this idea of probable cause, 
who is to decide it ? "What is the writ of habeas corpus ? Is the 
President to execute it, because it is his duty to see that the laws are 
executed, or is it a judicial function ? As I have read to you from 
the representations to the crown, made in 1704, in the British House 
of Lords, the party is to be taken before some court, in order that the 
matter may be inquired into, and if no probable cause of guilt is 
shown, he must be discharged. The matter is to be judicially inquired 
into, and by your Constitution the judicial power is vested in the courts 
of the United States, and not in the Executive. Who, then, is to de- 



termme tlie existence of probable cause ? The tribunal, the aiithorit}'- 
to investigate and decide, seems to have been lost sight of by the 
learned Attorner Greneral, 

The learned Attorney Greneral, after giving his opinion on the first 
point, assumes that the President has the legal discretionary power to 
arrest and imprison persons who are guilty of holding criminal inter- 
course with men in a great and dangerous insurrection, or persons sus- 
pected, ''with probable cause," of such criminal complicity ; and writes 
the words with marks of quotation to show that it is their legal mean- 
ing in which he uses them, " persons suspected with ' probable cause' 
of such complicity." Is there, I repeat, a lawyer in the land who does 
not know that probable cause is more than suspicion ; that it implies 
prima facie evidence of guilt sufficient to hold the party for trial ac- 
cording to the law of the land, and that it stands contradistinguished 
from suspicion ; that suspicion is no ground whatever for commitment 
upon arrest, unless sustained by an affidavit showing probable cause, 
not of suspicion, but of guilt ? What is suspicion, Mr. President ? 
Opinion, no more. Lord Bacon has well said : " Suspicions among 
thoughts are like bats among birds ; they always fly in the dark." 
The suspicion of an administration, or of any man, can never be just 
ground for depriving a citizen of his liberty. In this country there 
must be probable cause of guilt, of offense against the laws, and shown 
by affidavit with sufficient certainty, jn order to justify the incarcera- 
tion of his person ; and we have no free country when that ceases to 
be the law. Either enmity or timidity will suspect without cause, 
and power, too, will suspect where it wishes to crush an opponent. 
Unhappy, indeed, is the country where personal vengeance and po- 
litical animosity can satiate itself by the imprisonment of its object 
upon suspicion. 

Let me ask what constitutes the difference between the letter de cachet 
in the reign of Louis XIY and an arrest by the President of the United 
States, because he chooses to declare there is a state of insurrection, and 
arrest at his discretion, or at the discretion of any subordinate officer, 
on suspicion of guilt ? What constitutes the difference between the 
Bastile and Fort McHenry or any other fort of the United States ? 
Louis XIY said " Vetat c^est moi f and he exercised the power of com- 
mitting any subject of France to the Bastile to lay there in a dungeon 
for one year or ten, at his discretion. The individual might be forgot- 
ten, or he might be the subject of personal animosity, and it was sO 
most frequently. But, at least, the act of arbritrary power had this 
restriction : it was always done under the immediate order of the sove- 
reign. The President of the United States claims a similar power, not 
only to be exerted by himself) but by any subordinate to whom he 
chooses to delegate the authority ; not only to suspend the habeas cor- 
2)us act, but to arrest and incarcerate on suspicion at discretion ; and 
the difference in the place of incarceration is, that Fort McHenry and 
your other forts may have no dungeons, but the restraint upon the 
liberty of the party is just as arbitrary and unlawful. The restraint, 
too, is claimed as discretionary in the duration of imprisonment. The 
punishment is the same, though it may not be characterized by the 
same brutality in the mode of confinement. If a man can be arrested 
and imprisoned at discretion, without proof of any criminal act — I mfean' 



17 

prima facia proof, legal proof sufficient to hold him for trial — and can 
be held in prison for an indefinite time without being brought to trials' 
(which he can be if this great writ of right is suspended,) there is no 
remedy for him whatever. I ask, where is the liberty remaining to a 
single American citizen with such an exercise of authority by the 
President, sanctioned by the legislative power of the Union ? 

Mr. President, there is no other distinction between the condition of 
France under Louis XIY and present condition of these United States, 
if this resolution be passed. The Bastile had its dungeons ; the forts 
have none. Louis XIY alone issued his letters de cachet ; but the 
President of the United States delegates a general power to one or ten 
different officers to arrest and imprison guiltless men, whenever the 
officer chooses to suspect them of criminal complicity, and all this is to 
be sanctioned and continued in the face of a Constitution which we had 
supposed gave us, as citizens of a free country, free institutions, in contra- 
distinction to the absolutism which reis-ned in France imder Louis XIY. 

O 

Sir, there are other singular dicta, shall I call them, or propositions 
contained in this opinion, and it will be a celebrated opinion hereafter 
of the learned Attorney General. He even undertakes, from the form 
of the oath, to infer the grant of additional powers to the Executive 
- — a singular inference indeed for a lawyer to draw in reference to a 
written Constitution and frame of government consisting of specially 
delegated powers. If the proposition were correct, inasmuch as the 
oath which is administered to us and to the judges of the Supreme 
Court is one and the same — that is, to support the Constitution of the 
United States — it would be difficult to define and distinguish our re- 
spective powers. There is, at least, the merit of novelty in the idea, 
that the powers granted under a written instrument are to be either 
enlarged or decreased by the mere form of the oath to be administered 
to the party to support that instrument and perform his duties under 
it. It is such loose doctrines that lead to arbitrary power. 

He further uses the argument that this writ of habeas corpus is in 
the nature of an appeal, and that therefore, as far as concerns the Pres- 
ident, it would be an assumption on the part of the judicial power to 
overrule his decision. Not so, Mr. President; the principle is per- 
fectly familiar to every lawyer. The courts have decided that were a 
court of general jurisdiction, having jurisdiction of the particular 
offense, convicts the party, or commits him on proper process, it is not 
for them to revise and correct the irregularity of the judgment by an 
appeal on the writ of habeas corpus ; but that is because it is the judg- 
ment of a court of justice having competent jurisdiction. "Where, how- 
ever, there is defect of jurisdiction, and the arrest is an excess of au- 
thority, it belongs properly to the judicial power on the writ of habeas 
corpus to correct the excess and guard the citizen against unlawful 
imprisonmnent. An act done in excess of authority by any department 
or officer is merely void, and it is a judicial question under the Con- 
stitution to determine the extent of authority. A justice of the peace 
has a special jurisdiction under the Constitution, and so has the Presi- 
dent a special jurisdiction. Where ten justices of the peace committed 
a man on insufficient grounds, the Supreme Court, without hesitation, 
after sentence, as the justices had not pursued their authority, dis- 
charged the party on a return to the writ of habeas corpus. It was a 



20 

cause I have lived long enough to know that the hest men, with right ^ 
intentions, have too often, from wrong judgment, perpetrated the great- 
est and the foulest wrong. But I take his acts — and I judge from what 
has passed of what Avill pass — when yoa have removed the lingering- 
doubt that appears on the face of his message, and have aihrmed that 
hi^ claim of discretionary power to suspend the writ of habeas corpus is 
rightfidlj made, and that all the acts which have been done under that 
claim of power in the past have been rightfully done. 

Merrj^man was arrested in the city of Baltimore — for what ? For 
past acts, as far as we know or as was alleged. He has since been 
indicted for these acts — which were past acts at the time of his arrest — ' 
treason against the United States. He has been handed over to the 
civil power for trial, and has given bail, after having been kept in con- 
finement by unauthorized authority for many months ; and whether it 
was a month or three months or a week, the imprisonment was none 
the less an ntter violation of the Constitution. But the President did 
not stop there. The city of Baltimore was then quiescent ; the mob 
which existed there, (and it was a mob,) was put down by the civil 
power of the city ; order was entirel}'' restored ; and the courts of the 
United States have been always open. Long after, a new actor appears 
in the arena ; and another officer of the United States, under the au- 
thority of the President, not only arrests on suspicion, without charge 
on oath, the chief of police of Baltimore, but without even the allega- 
tion of suspicion, he supercedes in their functions the police com- 
missioners of that city existing under the laws of Maryland, and having 
the control and safeguard of its municipal protection. They were su- 
perseded without even the semblance of a suspicion charged or stated. 
Is such an act within the authority of the President of the United States, 
or of his military commanders ? When these commissioners protested 
against this course of action, and refused to delegate to others powers 
intrusted to them by the legislature of Maryland solely for ~ municipal 
purposes, ho arrested them, too ; and they are still imprisoned in Fort 
McHenry, without charge, without suspicion, without anything but the 
failure of implicit obedience to the military despot of the particular 
district. Not thrown into a dungeon ; not manacled, that we know of; 
but certainly unlawfully incarcerated. The treatment, however, of 
these or any other prisoners confined in your forts unlawfully, lAust 
depend upon the humanity or inhumanity, the likes and dislikes, of the 
officer in command of the prison. ^ 

You propose to affirm all these acts by your resolution. You pro- 
pose to keep these men in prison at the will of the Executive, in the 
face of the Constitution, for no cause stated in the proclamation of the 
officer who ordered the arrest having the semblance of justification. 
Their sole ofiense consisted in a refusal to delegate the powers intrusted 
to them by the laws of Maryland to a military commander of the United 
States, and yield implicit obedience to his will. Such is the course of 
military power always. It is an arbitrary power, and despotic in its 
nature. I make no particular charge against the officer who issued 
that order, because, I understand, he issued it under the direction of 
the War Department. I impiign nobody's motives ; but I state the 
facts ; and I state the facts as a gross violation of the Constitution of 



21 

the United States — as an outrage upon tlie personal liberty of the citi- 
zen, which, though it falls upon Mr. Gatchell and his associates to-day, 
may be brought home, gentlemen, to yourselves at a future period, if 
you affirm this power, because the judicial authority has been put at 
defiance, and the civil authority trampled upon, by military violence, 
and the answer is, that the writ of habeas corpus has been suspended 
by the President. Affirm the legality of that suspension, and of course 
the same answer will be given in the future ; and we all know that the 
military power, sustained by the Executive and by the vote of Con- 
gress, will be irresistible, unless the whole people of the United States 
should arise en masse against such despotism. 

Ardent as may be a man's views in favor of this war, harshly as he 
may think of the rebels, and determined as he may be to prosecute it to 
its utmost extent, until the South unconditionally submits, if he cher- 
ishes the principles of civil liberty, he cannot sustain this action of the 
Psesident which violates the laws of the land, and abolishes all security 
for personal liberty to every citizen throughout what are called the 
loyal States, while it conduces, not in the slightest degree, to the sub- 
jugation or submission of the South. It touches not you now, who 
support and advocate the course and measures of existing power, but 
touches only those who are opposed to these measures ; but by your 
approval, you take the iirst step for the subversion of a republican 
■form of government, and it is the first step only which costs. The 
future progTcss toward absolutism will be rapid. Where is the neces- 
sity for the exercise of such a power, except in those States that have 
seceded ? There I concede to you that, having suspended the laws by 
civil war, they must take the consequences of the action of military 
}3ower, if you choose to declare or recognize war. The laws of the 
United States are suspended in those States, and the courts are closed; 
but can the civil be justly and constitutionally subordinated to the 
military power in other States, because of opposition or disaffection to 
the Grovernment ? Do you suppose that by suspending the writ of ha- 
'^eas corpus, and authorizing the seizure of the person of an individual 
Ion suspicion, that you will ever reach the right man ? You may drown 
all open opposition ; but is the man who boldly speaks out in opposi- 
rtion^ to the measures of an administration the man who is to be feared 
as a conspirator? 

1 Sir, the conspirators, if such there be, under professions of adhe- 

eion, ardent adhesion to existing power, will cloak the conspiracy by 

Which they mean to destroy it. The slightest knowledge of human 

pture must lead to this conclusion. The conspirator enters into no 

men opposition to the Government. With the nearly unanimous sup- 

jort that you have, for the present at any rate, throughout all the 

Itates that have not withdrawn from the Union, you have nothing to 

ear, because there may be opposition to your measures, or there may 

jp, if you please, disaffected men in all the States. Your Government 

inot so weak that the disaffection of a few can overturn it if supported 

V the people. 

Look back to our own experience in history. During the revolu- 
tlnary war there were Whigs and Tories, but the writ was never sus- 
ptided. During Burr's conspiracy in 1807, though a single military 
oieer arrested persons without law in New Orleans, he did not under' 



take to suspend the vrrit of habeas corpus. The Executive never ap- 
jn-oved his conduct, or claimed this power in himself. Of the three 
arrested, two had been sent off to the North before the writ was served; 
and the court in New Orleans, as to those two, held the answer suffi- 
cient that they were noionger in his custody ; the third was discharged 
in the court there. Two were brought here, BoUman and Swartout;- 
The President immediately handed them over to the judicial authori- 
ties with the affidavits to sustain the charge against tllera. The circuit 
court committed them for trial for treason, and on a habeas corpus 
'before the Supreme Court, that court on revision held that the charge 
"was not shown with sufficient certainty in the affidavits, and dis- 
charged them. Mr. Jefferson never recommended, as has been said 
Jiere, that the habeas corpus law should %e suspended. There is not a 
line or a word in his message recommending such action. He stated 
the fact that he had committed these men to judicial custody, and that 
he left to Congress to devise such measures as in their judgment they 
thought proper under the exigencies of the case. The Senate of the 
United States, in secret session — no one knows how ; no one can tell 
■what influences operated upon them, for there is no record of any de- 
bate — passed in one day, through its three readings, a bill to suspend 
the writ of habeas corpus ; but when it came into the House of Repre- 
sentatives, the House of Representatives, to mark' its view of the out- 
rageous character of such an act, rejected it on its first reading, after 
a long debate, by a vote of 113 to 14! Yet there was a -wide-spread 
conspiracy then, and it was in that part of the country where th-e 
Government was weakest ; but no man at that day ventured to claim 
for the President, nor did he himself claim, the right to exercise such 
a power. 

Then came the war of 1812. Was there no opposition or disaffec- 
tion to the Grovernment then ? Was there not opposition to a very 
large extent during that war ? Was there not great disaffection during 
that war ? Did the Congress of the United States suspend the writ of 
habeas corp>us ? Did the President of the United States undertake tc; 
arrest citizens and hold them in confinement at his will, claiming th( 
right that, because war existed and communications were known tc 
have been made to the enemy by persons disaffected to . the govern 
ment, therefore he might lawfully arrest any citizen on suspicion, with 
out proof of probable cause, and detain him in prison indefinitely 
No, sir, civil liberty was too much cherished in that day. Our imme 
diate ancestors, even, knew too well what were the benefits of fre 
government, and how insidious were the approaches and how great tb 
curse of a despotism, to break down the Constitution under an imag 
nary necessity, when the Government was quite strong enough to su- 
■due all treason, or all offenses against its laws within all the States i 
which the courts were open for the prosecution of offenses, withot 
resorting to this arbitrary exercise of power. Yet in that war we wee 
contending against a formidable enemy, and there was serious disf- 
fection ; and the nation and the Government not half so powerful aat 
now is. It seems that power now too readily converts conveniece 
into necessity. 

Mr. President, human nature is the same in all ages an(i in all con- 
tries. Power always tends to corruption, and especially when conen- 



23 

f 'tfated in a single person ; and it is that tendency wliicli requires, in 
all free governments, the division of power amon-g separate and inde- 
pendent departments, for the prevention of its abuse — legislative, ex- 
ecutive, and judicial — and it is only by maintaining the balance be- 
tween thSse depositories of power that a government of laws can be 
■perpetuated. Could you suppose a god to descend upon earth for its 
government, it would be wiser to submit to his government than to 
attempt to govern ourselves ; but, while humanity has its inherent 
frailties, the experience of mankind has vindicated the great truth that, 
by the concentration of power in the hands of the one or the few, a 
government of laws — which alone is a free government — ^nust degene- 
rate into a government of Avill. When a discretionary power over not 
only the property but the liberty of the citizen or subject is vested in 

' or can be exercised by one man, uncontrolled by fundamental laws for 
their preservation, capable of enforcement by a separate and inde- 
pendent department, freedom no longer exists ; and Avhether the person 
who exercises that discretionary power be called a monarch, a dictator, 
or a president, the Grovernment is equally a despotism. A despot may 
happen to have sufficient intelligence and virtue to consult the general 
interest of his subjects, and may govern with justice and equity, but, 
with the corrupting influence of power, the security is but frail for 
continued good government. I speak with no allusion to the present 
President, who may be as little affected by the possession of discre- 
tionary power as any man ; but to no man, and under no emergency, 
should a free people ever trust uncontrolled discretionary power over 
their personal liberty. The power to imprison at discretion, by military 
force, vested in one man or a few men, is incompatible with republican 
institutions, be it a dictator or a Council of Ten, the end is either des- 
potism or oligarchy. 

An honorable Senator has told us that he would be willing- at this 
time to yield almost unlimited power to the executive. Sir, if you 
pass this resolution, you give unlimited power to the President of the 

""IcJnited States; you take away the last remnant of liberty in this 
country. You abandon to him the great judicial right which protects 
the liberty "of the citizen, in the face of the Constitution, without 
judging of the exigency for yourselves, or avowing to the people, by 
direct legislation, that you have parted with that right. Suppose that 
Abraham Lincoln was a man of great force of will, of great military 
talent, great ambition, and with sufficient capacity as a statesman to 
govern and discreetly control the career of his ambition in the pursuit 
of permanent power : I ask you, if a Cromwell or a Bonaparte were 
invested with the powers you now propose to place in the hands of 
the President of the United States, if the liberties of this country 
would not lie at his feet ? Sir, for one, without regard to the man, I 
will look upon any one in reference to the grant of such unlimited 
power, as a Cromwell or a Bonaparte. I cannot expect from the past 
history of humanity, that the next eighteen centuries will produce the 
equal of Greorge Washington ! 

Sir, are there not dangers if this power is entrusted to the execu- 
tive, apart from the idea of any attempt to obtain supreme and per- 
manent comriiand ? Every one knows that opposition is not readily 
brooked by power. We have seen that the citizen has been arrested 



24 

on mere suspicion, and witliout - even tlie cliarge of suspicion in some 
cases as I have sliown you. Will not the next step be to destroy the 
liberty of canvassing Avith freedom the measures of the administra- 
tion ; a right which is secured by our Constitution ? Will not the 
press die under the discretionary power of arrest ? If that is not sufSi- 
•cient. and there should be a lingering few in this chamber who venture 
to question any one act of the existing administratiou, may not the 
power be applied to them, and not only rebellion be crushed out in 
the seceded States, but the last hope of liberty crushed out, by de- 
stroying the right of the Eepresentative of the people to boldly ques- 
tion the acts of power, be they those of a President, a judge, or a 
Congress ? 

Sir, I could dilate on this subject to a much greater extent ; but can 
see that few honorable Senators opposed to me have listened to ray 
warnings, nor will they probably have read my remarks until they 
pass this resolution. I suppose I must give up the faint hope I enter- 
tained, that this resolution, so utterly unnecessary to have been intro- 
duced, even on your own theory, can or will be defeated. It will pass ; 
but, in my judgment, when you pass it, you prostrate the liberties of 
this country and destroy the rights of its citizens as free citizens. You 
must carry with you the fact that you have no condoning power, no 
pardoning power. You may declare an act to be legal or constitu- 
tional ; but if it is not, you cannot make it so ; you may legalize for 
the future many acts which have been done, you cannot for the past. 

You cannot vest power legally by a resolution, under the Constitu- 
tion, where the Constitution does not vest it. You have no judicial 
authority so to decree; but you may, in the face of the Constitution, 
by bringing the legislature into accord with the Executive, in the 
assertion of an unconstitutional power, subvert the liberties of your 
countr/. 'No one has asked you — and we know we are powerless for 
that purpose — to censure the President of the P"nited States ; but I tell 
you frankly, when" the people of this country pass from the state of ex- 
citement which now exists, as your resolution cannot condone any a-^ 
which may have been done in violation of the Constitution by thb 
Executive, a subsequent Congress can deal legally with this questioii, 
by the action of the House of Representatives as an impeaching . body, 
and the action of the Senate in deciding on that impeachment. I ioi'd[j 
not then be a member of this body, and I trust I shall not. I will nOt 
attempt to predict what the action of a subsequent Congress may be'(|n 
those extraordinary acts of the President which you now not only d|e- i 
terrnine to approve but declare to be valj-d. But the very face of yofir , 
resolution implies that you think they are not within his constitutional i 
powers. By specific legislation, you may give effect to all the acts! 
mentioned in the approving resolution, except in the case of the sus-/ 
pension of the writ of habeas corpus ; and in regard to that, you do not 
venture to declare to the people of this country by opeA legislation Ihe 
■effect and object of your resolution, be it enacted by the authorit;;^ of 
the Senate and House of Representatives, that the writ of habeas corpus 
shall be suspended within certain limits prescribed in the law and for a 
certain duration of time. Yet that 'is the only legitimate mode of legis- 
lation when the necessity arises, and the only constitutional mode ija 
which such a power can be exercised. 



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